Opinion
Civil Action No: 04-1115 Section: "J" (1).
March 1, 2005
HEARING ON MOTION
Submitted on briefs.
RITE AID'S MOTION TO QUASH AMENDED RULE 30(b)(6) NOTICE OF DEPOSITION OF RITE AID AND/OR MOTION FOR PROTECTIVE ORDER (Rec. doc. 119)
GRANTED IN PART AND DENIED IN PART
Before the undersigned is the motion of the defendant, Rite Aid Corporation ("Rite Aid"), to quash amended Rule 30(b)(6) notice of deposition of Rite Aid and/or motion for a protective order. The plaintiff, Pamlab, L.L.C. ("Pamlab"), served this amended notice for oral discovery. Pamlab's written discovery used a time period of December 1, 2003 to the present for some of its discovery requests. This time period was approved in the court's October 12, 2004 order. Rec. doc. 78 at p. 12. Unless otherwise indicated this time period is applicable to all matters on which Pamlab seeks examination. Rite Aid's general objection to the use of the word "drug" in the notice is overruled. Rite Aid's general objection to Pamlab's request for information in the possession of Rite Aid's "affiliates" is sustained. The rulings on the individual matters appears below.
Matter no. 11.
The development, maintenance, use and operation of the computer system(s) and software that Rite Aid pharmacists use to order prescription drugs and/or fill prescriptions, including any proprietary pharmacy system or other computer program.
The category is modified to exclude "development" and "maintenance." Rite Aid shall produce a representative to testify concerning matter no. 11 as modified.
Matter no. 12.
Identity and job functions of the person(s) responsible for the development, operation and maintenance of the computer system(s) and software that Rite Aid Pharmacists use to order prescription drugs and/or fill prescriptions, including any proprietary pharmacy information system or other computer program.
It is not necessary that Pamlab obtain the names of the persons responsible for the operation of the system. Rite Aid is not required to produce a representative on matter no. 12.
Matter no. 15.
The description (including, but without limitation, name(s) of backup software, tape rotation schedule, type of tape backup drives, including name and version number) of any and all procedures and/or devices used to backup the software and/or date of Rite Aid's computer system(s) that Rite Aid pharmacists use to order prescription drugs and/or fill prescriptions, including any proprietary information system or other computer program.
Rite Aid shall produce a representative to testify concerning matter no. 15.
Matter no. 17.
Rite Aid's document destruction and retention policies for paper and electronic information and/or data concerning its retail pharmacy operations.
Rite Aid shall produce a representative to testify concerning matter no. 17.
Matter no. 19.
Rite Aid's compliance with NCPDP standards and the type of information Rite Aid collects, stores, and/or transmits to third party payors, such as Medicaid/Medicare.
Pamlab has not demonstrated that the information on NCPDP standards is relevant to the claims and defenses of the parties. Rite Aid shall produce a representative to testify concerning the type of information that Rite Aid collects, stores and/or transmits to Medicaid and Medicare.
Matter no. 20.
Rite Aid's point of sale computer system concerning the information collected and stored by Rite Aid and transmitted to third party payors, such as Medicaid/Medicare.
Pamlab may not inquire as to the data transmitted to any third party payors other than Medicaid and Medicare. Rite Aid shall produce a representative to testify concerning matter no. 20 as modified.
Matter no. 21.
Rite Aid's policies and/or procedures concerning drug substitution.
The matter is modified to "Rite Aid's general policies and procedures on the substitution or dispensing of generic drugs and any policies and procedures for FOLTX and FOLBEE." See Rec. doc. 78 at p. 12 (category no. 10). Rite Aid shall produce a representative to testify concerning matter no. 21 as modified. Matter no. 22.
Rite Aid's programs that promote generic drugs.
Rite Aid is not required to produce a representative on matter no. 22. See Rec. doc. 78 at p. 14 (category no. 14).
Matter no. 23.
Training, orientation, or education provided to Rite Aid pharmacists concerning drug substitution.
The matter is modified to "general training, orientation or education applicable to all drug substitutions." See Rec. doc. 78 at p. 8 (interrogatory no. 9). Rite Aid shall produce a representative to testify concerning matter no. 23 as modified.
Matter no. 24.
Rite Aid's use of the FDA "Orange Book" or FDA therapeutic equivalency ratings in determining whether to link or substitute drugs.
Rite Aid is not required to produce a representative on matter no. 24. Pamlab has not demonstrated that the information is relevant to the parties' claims and defenses.
Matter no. 25.
Rite Aid's policies, practices and/or procedures concerning dispensing drugs that are not pharmaceutically or therapeutically equivalent to the drug prescribed, including (a) whether and under what circumstances Rite Aid pharmacists are required or expected to contact the prescribing physician and (b) whether and how the Rite Aid pharmacist is required to inform the patient.
Rite Aid shall produce a representative to testify concerning matter no. 25.
Matter no. 26.
The properties, characteristics, and uses of FOLBEE and/or FOLTX.
Rite Aid shall produce a representative to testify concerning matter no. 26.
Matter no. 27.
Any research conducted by or known to Rite Aid to determine whether FOLBEE is or is not pharmaceutically equivalent, bioequivalent and/or therapeutically equivalent to FOLTX.
Rite Aid shall produce a representative to testify concerning matter no. 27.
Matter no 28.
Any products generic to FOLTX and the basis of the determination that such product is generic to FOLTX.
Rite Aid is not required to produce a representative on matter no. 28, except with respect to testimony concerning whether FOLBEE is generic to FOLTX and the basis of the determination that it is generic to FOLTX. See Rec. doc. 128 at p. 2(category no. 1 concerning substitution of other products for FOLTX).
Matter no. 29.
Rite Aid's substitution of FOLBEE for FOLTX and Rite Aid's decisions and basis for its decisions to do so.
The matter is modified to "Rite Aid's decision to authorize its pharmacists to substitute FOLBEE for FOLTX and the basis for that decision, whether the decision was specific to FOLBEE and FOLTX or simply general for generic drugs." Rite Aid shall produce a representative to testify concerning matter no. 29 as modified.
Matter no. 30.
Communications by Rite Aid or any affiliate to Rite Aid pharmacists concerning substitution of FOLBEE or other drugs for FOLTX.
The matter is modified to "communications by Rite Aid to its pharmacists concerning substitution of FOLBEE for FOLTX." Rite Aid shall produce a representative to testify concerning matter no. 29 as modified.
Matter no. 31.
The states in which Rite Aid contends FOLBEE may be lawfully substituted by a pharmacists for FOLTX and the basis for Rite Aid's contention.
Rite Aid is required to produce a representative to testify concerning matter no. 31.
Matter no. 33.
The information requested in Pamlab's Interrogatory no. 5 to Rite Aid.
In accord with the October 12, 2004 ruling on Interrogatory no. 5, Rite Aid shall produce a representative who can testify as to what information sought in interrogatory no. 5 can be retrieved from Rite Aid's computer system and what information sought in the interrogatory can only be retrieved manually. Rite Aid shall also produce a representative who can testify as to the gross information that was produced in response to interrogatory no. 5.See Rec. doc. 78 at pp. 5-6.
Matter no. 35.
The business relationship and contracts between Rite Aid and Breckenridge.
The matter is restricted to FOLBEE. Rite Aid shall produce a representative to testify concerning matter no. 35 as restricted.
Matter no. 36.
The decision to carry, stock and/or sell FOLBEE at Rite Aid pharmacies and all persons who participated in the decision and the role of each such person in that decision.
The matter is modified to "the decision to sell FOLBEE at Rite Aid pharmacies and all persons who participated in the decision and the role of each such person in that decision." Rite Aid shall produce a representative to testify concerning matter no. 36 as modified.
Matter no. 37.
Communications between Rite Aid and First Data Bank, Medispan, Redbook, Facts and Comparisons or similar drug product database services pertaining to FOLBEE or FOLTX.
Rite Aid is required to produce a representative to testify concerning matter no. 37. See Rec. doc. 78 at p. 17 (category nos. 26 and 27).
Matter no. 39.
The spread for FOLBEE and FOLTX.
Rite Aid shall produce a representative to testify concerning matter no. 36 as modified. See Rec. doc. 78 at p. 7 (interrogatory no. 8).
Matter nos. 40-43.
These four matters concern Rite Aid's decision not to sell Pamlab's products. Rite Aid is not required to produce a representative to testify concerning matter nos. 40-43. See Rec. doc. 128 at p. 2 (category nos. 5-7).
IT IS ORDERED that Rite Aid's motion to quash Pamlab's amended Rule 30(b)(6) notice of deposition of Rite Aid and/or motion for a protective order (Rec. doc. 119) is GRANTED in PART and DENIED in PART in accord with the terms of the minute entry.